High Court Bulletin
[2007] HCAB 10
HIGH COURT
BULLETIN
2007
No. 10 As at 31 October 2007
Section 1: Cases Reserved
Δ Indicates cases reserved since High Court Bulletin No. 9 of 2007.
Bankruptcy
Foots v Southern Cross Mine Management Pty Ltd & Ors (B26/2007)
Date heard: 19 June 2007. Judgment reserved.
Gleeson CJ, Gummow, Kirby, Hayne and Crennan JJ.
CATCHWORDS
Bankruptcy – Debts and liabilities provable in bankruptcy – Legal costs – Second respondent successfully sued appellant, who was ordered to pay compensation – After appellant ordered to pay compensation but before judgment in relation to costs had been handed down, appellant declared bankrupt – Appellant ordered to pay second respondent’s costs – Whether liability for costs was provable in bankruptcy – Whether proceedings should have been stayed – Bankruptcy Act 1966 (Cth), s 82 – Uniform Civil Procedure Rules 1999 (Qld), r 72(1).
Appealed from Qld CA. [2006] QCA 531; (2006) 4 ABC (NS) 443.
Consumer Credit
Australian Finance Direct Limited v Director of Consumer Affairs Victoria (M53/2007)
Date heard: 2 August 2007. Judgment reserved.
Gleeson CJ, Gummow, Kirby, Hayne and Crennan JJ.
CATCHWORDS
Consumer credit – Disclosure in credit contracts – Whether, for the purposes of s 15(B) of the Consumer Credit Code, a holdback arranged between a credit provider and a supplier of goods or services financed by consumer credit is part of “the amount of credit to be provided” – Whether, by reason of s 15(B) of the Code, the credit contract between the credit provider and the consumer must contain a statement of the amount of the holdback and of the person or persons to whom the holdback is payable – Whether payment by the credit provider to the supplier of a remittance, net of the holdback, constitutes payment of “the amount of credit” provided under the credit contract.
Appealed from Vic CA. [2006] VSCA 245.
Constitutional Law
Attorney-General of the Commonwealth v Alinta Limited & Ors (S331/2007)
Date heard: 2 – 3 October 2007. Judgment reserved.
Gleeson CJ, Gummow, Kirby, Hayne, Heydon, Crennan and Kiefel JJ.
CATCHWORDS
Constitutional law – Judicial power of the Commonwealth – Whether s 657A(2)(b) of the Corporations Act 2001 (Cth) (“the Act”) is invalid on the ground that it purports to confer the judicial power of the Commonwealth on the Takeovers Panel, contrary to Chap III of the Commonwealth Constitution – Whether s 657A(1) of the Act is invalid insofar as it purports to give the Takeovers Panel jurisdiction to declare circumstances to be unacceptable circumstances which constitute a contravention of a provision of the Act.
Appealed from FCA. [2007] FCAFC 55; (2007) 25 ACLC 602; (2007) 62 ACSR 196; (2007) 159 FCR 301.
Blessington v The Queen (S218/2007)
Elliott v The Queen (S215/2007)
Date heard: 6 September 2007. Judgment reserved.
Gummow, Hayne, Heydon and Crennan and Kiefel JJ.
CATCHWORDS
Constitutional law – Exercise of judicial power – During sentencing remarks, trial judge imposed life sentence on both appellants and recommended that they never be released from prison – Non-release recommendation had no legal effect at that time – Subsequent legislation gave effect to non-release recommendation so that appellants would almost certainly never be released – Appellants seek to appeal sentence to overturn non-release recommendation – Whether it would be an inappropriate exercise of judicial power to give leave to reopen an appeal against sentence when subsequent legislation has attached legal consequences to the non-release recommendation.
Courts and judicial system – Appellate jurisdiction – Whether New South Wales Court of Criminal Appeal has jurisdiction to review non-release recommendation – Whether the non-release recommendation was not an “order of the court of trial” for the purpose of the Criminal Appeal Act 1912 (NSW) because it did not have any legal effect at the time it was made.
Appealed from NSW CCA. [2006] NSWCCA 305; (2006) 164 A Crim R 208.
Gypsy Jokers Motorcycle Club Incorporated v Commissioner of Police (P26/2007)
Date heard: 27 – 28 September 2007. Judgment reserved.
Gleeson CJ, Gummow, Kirby, Hayne, Heydon, Crennan and Kiefel JJ.
CATCHWORDS
Constitutional law – State Supreme Courts – Institutional integrity – Whether s 76(2) of the Corruption and Crime Commission Act 2003 (WA) (“Act”) is a valid exercise of the legislative power of the Parliament of Western Australia – Whether s 76(2) of the Act is invalid on the ground that it infringes Chapter III of the Commonwealth Constitution – Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51.
Appealed from WA CA. [2007] WASCA 49; (2007) 208 FLR 403; (2007) 33 WAR 245.
Contract
International Air Transport Association v Ansett Australia Holdings Limited (subject to Deed of Company Arrangement) & Ors (M51/2007)
International Air Transport Association v Ansett Australia Holdings Limited (subject to Deed of Company Arrangement) (M52/2007)
Date heard: 5 September 2007. Judgment reserved.
Gleeson CJ, Gummow, Kirby, Hayne, Heydon, Crennan and Kiefel JJ.
CATCHWORDS
Contract – Construction – Multilateral Interline Traffic Agreements (“Interline Agreements”) together with IATA Clearing House regulations (“Regulations”) provide a simplified mechanism for the payment of debts incurred when one airline sells tickets for flights on another airline – Ansett Australia Holdings Limited (“Ansett”) was a party to the Interline Agreements – Whether the Interline Agreements and Regulations applied to claims by or with respect to Ansett which had not been cleared at 12 September 2001 – Whether the Interline Agreements and Regulations gave rise to debts or choses in action as between Ansett and other member airlines.
Corporations – Deed of company arrangement – Ansett was subject to a deed of company arrangement pursuant to the provisions of Pt 5.3A of the Corporations Act 2001 (Cth) (“the Act”) – Whether the application of Ansett’s property in accordance with the Regulations was inconsistent with the deed of company arrangement entered into pursuant to Pt 5.3A of the Act and therefore offended the principle applied in British Eagle International Airlines Ltd v Compagnie Nationale Air France [1975] 1 WLR 758.
Appealed from Vic CA. [2006] VSCA 242; (2006) 60 ACSR 468; (2006) 24 ACLC 1381.
Koompahtoo Local Aboriginal Land Council & Anor v Sanpine Pty Limited & Anor (S221/2007)
Date heard: 28-29 August 2007. Judgment reserved.
Gleeson CJ, Gummow, Kirby, Heydon and Crennan JJ.
CATCHWORDS
Contract – Joint venture – First appellant and first respondent entered a joint venture agreement – First respondent breached the agreement – First respondent’s breaches found not to have been excused by waiver or estoppel – Whether first respondent had repudiated the joint venture agreement – Whether first appellant’s acts or omissions, although not amounting to waiver or a sufficient basis for an estoppel, may have significance in determining whether first respondent had repudiatory intent – Whether first appellant entitled to terminate agreement for breach of essential term – Whether first appellant entitled to terminate agreement for a sufficiently serious breach of an intermediate term.
Appealed from NSW CA. [2006] NSWCA 291.
Corporations
See Contract – International Air Transport Association v Ansett Australia Holdings Limited (subject to Deed of Company Arrangement) & Ors (M51/2006); International Air Transport Association v Ansett Australia Holdings Limited (subject to Deed of Company Arrangement) (M52/2006) and Bluebottle UK Limited & Ors v Deputy Commissioner of Taxation & Anor (S27/2007) .
Courts and Judicial System
See also Constitutional law – Blessington v The Queen (S359/2006) and Elliot v The Queen (S360/2006).
Criminal Law
Δ Ayles v The Queen (A40/2007)
Date heard: 23 – 24 October 2007. Judgment reserved.
Gleeson CJ, Gummow, Kirby, Heydon and Kiefel JJ.
CATCHWORDS
Criminal law – Conviction – Whether a trial judge (sitting without a jury) has power to amend an Information so as to substitute or add a new charge and/or new date range in the course of judgment after the evidence has been completed, without reference to counsel – Criminal Law Consolidation Act 1935 (SA), s 281.
Criminal law – Conviction – Whether an incomplete notation of an amendment on an Information creates a valid conviction.
Appealed from SA SC. [2007] SASC 82; (2007) 97 SASR 78; (2007) 247 LSJS 175.
Director of Public Prosecutions v Le (M65/2007)
Date heard: 6 August 2007. Judgment reserved.
Gleeson CJ, Gummow, Kirby, Hayne and Crennan JJ.
CATCHWORDS
Criminal law – Confiscation of property – Exclusion order – Respondent owns an apartment in joint tenancy with her husband – Appellant obtained restraining order in relation to apartment under s 16(2)(c) of the Confiscation Act 1997 (Vic) (“the Act”) after respondent’s husband charged with drug trafficking offence – After respondent’s husband was convicted, respondent applied under s 51(1) for an exclusion order under s 52 – Whether the whole of the apartment must be excluded from forfeiture if the application for the exclusion order is successful – Whether only respondent’s interest would be excluded.
Criminal law – Confiscation of property – Whether “natural love and affection” is “sufficient consideration” within the meaning of s 52(1)(a)(v) of the Act.
Criminal law – Confiscation of property – Tainted property – Whether respondent satisfied the criterion in s 52(1)(a)(iii) of the Act that the circumstances in which she had acquired her interest in the property were “such as not to arouse a reasonable suspicion that the property was tainted property” – Whether a lack of suspicion in respondent herself was sufficient to satisfy the criterion.
Criminal law – Confiscation of property – Effective control – Whether respondent established that her interest in the property was not subject to the effective control of her husband as required by s 52(1)(a)(iv) of the Act.
Appealed from Vic CA. [2007] VSCA 18; (2007) 15 VR 352; (2007) 169 A Crim R 177.
ΔMahmood v The State of Western Australia (P39/2007)
Date heard: 22 October 2007. Judgment reserved.
Gleeson CJ, Gummow, Kirby, Hayne and Kiefel JJ.
CATCHWORDS
Criminal law – Miscarriage of justice – Unfair comments by prosecutor in closing address – Trial judge did not allow counsel for appellant to reopen case to ameliorate the unfairness – Whether the subsequent directions of the trial judge cured the unfairness of the prosecutor’s comment – Whether there was a miscarriage of justice – What course the trial judge ought to have taken to ameliorate the unfairness.
Criminal procedure – Directions to jury – Bloodstain in pocket of appellant – Prosecution failed to lead evidence as to how the blood was transferred to the pocket – Whether the trial judge, in accordance with the principles in Jones v Dunkel (1959) 101 CLR 298, should have directed the jury that no inference was available that the murder weapon had been in the appellant’s pocket.
Appealed from WA SCA. [2007] WASCA 101.
WGC v The Queen (A20/2007)
Date heard: 8 August 2007. Judgment reserved.
Gummow, Kirby, Hayne, Heydon and Crennan JJ.
CATCHWORDS
Criminal law – Offences – Elements of offence – Whether date essential element of offence – Whether defence raised by appellant at trial caused date to become element – Whether date "mere evidence" or required to be proved beyond reasonable doubt.
Criminal law – Verdicts – Whether verdicts void for uncertainty – Whether verdicts void for lack of unanimity – Whether verdicts void due to possibility that different members of the jury convicted on the basis of different findings as to the dates of the alleged offences – Whether prosecution should have amended Information to reflect alternative cases put to the jury – Whether impermissible for prosecution to put case to the jury on the basis of alternative dates when particulars on Information referred to one set of dates only – Whether impermissible for trial judge to direct jury that they could convict on the basis of a set of dates not alleged in the particulars on Information.
Appealed from SA CCA. [2006] SASC 376; (2006) 96 SASR 301; (2006) 167 A Crim R 274.
See also Criminal Procedure – HML v The Queen (A23/2007); SB v The Queen (A19/2007); OAE v The Queen (A28/2007)
See also Evidence – Washer v The State of Western Australia (P26/2006).
Criminal Procedure
ΔAK v State of Western Australia (P27/2007)
Date heard: 23 October 2007. Judgment reserved.
Gleeson CJ, Gummow, Hayne, Heydon and Kiefel JJ.
CATCHWORDS
Criminal procedure – Application of the proviso – Trial judge sitting without a jury found appellant guilty of three counts of indecent dealing – Court of Appeal held that the trial judge’s reasons for his verdicts of guilty failed to articulate adequately the factual findings upon which he relied to reach the verdicts – Whether the proviso has any application when an appellate court finds that a trial judge has erred in law by failing to give adequate reasons for a guilty verdict.
Appealed from WA CA. [2006] WASCA 245.
HML v The Queen (A23/2007)
SB v The Queen (A19/2007)
OAE v The Queen (A28/2007)
Gleeson CJ, Gummow, Kirby, Hayne, Heydon, Crennan and Kiefel JJ.
Date heard: 25 – 27 September 2007. Judgment reserved.
CATCHWORDS
Criminal procedure – Directions of trial judge – Uncharged acts – Whether adequate directions given as to the purpose for which evidence of uncharged acts may be used.
Criminal law – Evidence – Relevance – Uncharged acts – Whether evidence of uncharged acts is relevant in prosecutions for sexual offences against children.
Criminal law – Evidence – Admissibility – Uncharged acts – Whether evidence of uncharged acts admissible only for limited purposes of demonstrating context or existence of a sexual relationship – Whether evidence of uncharged acts can used as propensity evidence.
Criminal law – Evidence – Uncharged acts – Whether evidence that no charges were laid regarding uncharged acts occurring interstate was relevant – Whether trial judge erred in refusing to allow defence to adduce such evidence.
Criminal procedure – Directions of trial judge – Uncharged acts – Evidence of interstate investigation of uncharged acts – Whether trial judge’s direction to jury not to speculate about the outcome of the interstate investigation was a sufficient direction.
Criminal procedure – Directions of trial judge – Whether trial judge should have directed the jury that they could not have regard to evidence of uncharged acts unless they were satisfied of the commission of those acts beyond reasonable doubt.
A23/2007 appealed from SA CCA. [2006] SASC 240.
A19/2007 appealed from SA CCA. [2006] SASC 319.
A28/2007 appealed from SA SC. [2007] SASC 206.
PM v The Queen (S217/2007)
Date heard: 14 June 2007. Judgment reserved.
Gleeson CJ, Kirby, Hayne, Heydon and Crennan JJ.
CATCHWORDS
Criminal procedure – Prosecution of children – Appellant was 16 years at time of the alleged offence – Appellant is alleged to have had non-consensual sexual intercourse with female complainant – Appellant initially charged with an offence which was not a “serious children’s indictable offence” – Initial charge was withdrawn and dismissed and appellant charged with an offence which was a “serious children’s indictable offence” – Following committal proceedings in the Children’s Court, appellant was committed to stand trial – At trial in the District Court, major charge on indictment was the charge initially preferred against appellant – Whether charge on indictment in District Court, not being a “serious children’s indictable offences”, was required to be to be dealt with summarily in the Children’s Court of New South Wales – Criminal Procedure Act 1986 (NSW), s 8 – Children (Criminal Proceedings) Act 1987 (NSW), s 31.
Appealed from NSW CCA. [2006] NSWCCA 297; (2006) 67 NSWLR 46; (2006) 164 A Crim R 151.
See also Criminal Law – Mahmood v The State of Western Australia (P39/2007)
See also Evidence – Evans v The Queen (S371/2006)
Defamation
Channel Seven Adelaide Pty Ltd v Manock (A21/2007)
Date heard: 7 August 2007. Judgment reserved.
Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ.
CATCHWORDS
Defamation – Fair comment – Whether, in pleading a defence of fair comment, defendant must address the imputation alleged by plaintiff – Whether it is sufficient for a defence of fair comment to address the words or images which are the basis of the alleged defamatory imputation.
Appealed from SA SC. [2006] SASC 322; (2006) 95 SASR 462; (2006) 246 LSJS 123.
Environment and Planning
Weston Aluminium Pty Limited v Alcoa Australia Rolled Products Pty Limited (S211/2007)
Weston Aluminium Pty Limited v Environmental Protection Authority & Anor (S373/2006)
Date heard: 20 June 2007. Judgment reserved.
Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ.
CATCHWORDS
Environment and planning – Scope of development consents – Respondent operates an aluminium remelt plant and semi-fabrication plant which includes an aluminium can reclamation facility – In 1980, respondent obtained development consent to operate a rotary furnace to process cans as well as aluminium dross produced by the plant (“1980 consent”) – In 1981, respondent obtained development consent to operate an aluminium remelt facility (“1981 consent”) – Whether 1981 development consent permitted aluminium dross obtained from offsite to be processed in the rotary furnace – Whether an existing licence under the Protection of the Environment Operations Act 1997 (NSW) can be varied to permit a new scheduled activity for which a licence is required.
Appealed from NSW CA. [2006] NSWCA 273; (2006) 148 LGERA 439.
Evidence
Evans v The Queen (S219/2007)
Date heard: 1 August 2007. Judgment reserved.
Gummow, Kirby, Hayne, Heydon and Crennan JJ.
CATCHWORDS
Evidence – Irrelevance and unfair prejudice – Offender wore a balaclava and overalls during the offence – A balaclava and overalls were seized from appellant’s home twenty-two months after the offence – Seized balaclava and overalls were shown to witnesses at trial – Whether evidence of witnesses about the similarity between the seized items and those worn by the offender were irrelevant and unfairly prejudicial to appellant.
Evidence – Accused asked to dress similarly to, and repeat words said by, offender – At trial, prosecutor asked accused to wear a balaclava and repeat words said by the offender – Accused later asked to put on overalls similar to those worn by offender – Whether the wearing of the balaclava and overalls and repetition of words said by the offender amounted to “a demonstration” within s 53 of the Evidence Act 1995 (NSW) – Whether requiring accused to dress and act in a similar manner to offender was unfair.
Criminal procedure – Failure to give reasons – Trial judge indicated reasons would be given for decision to allow admission of certain evidence – Reasons not subsequently given – Whether appeal court may infer trial judge’s reasoning.
Criminal procedure – Trial judge’s directions – Trial judge did not give the jury any specific warning about the use of evidence for comparison in relation to accused’s dressing similarly to, and repetition of words said by, offender – Whether a specific warning was required.
Criminal procedure – Application of the proviso – Accused was required to wear the Crown prosecutor’s sunglasses during the trial – Trial judge did not allow admission of certain alibi evidence – New South Wales Court of Criminal Appeal held that accused should not have been required to wear sunglasses and that the defence should have been allowed to adduce the alibi evidence – Whether New South Wales Court of Criminal Appeal should have applied the proviso – Criminal Appeal Act 1912 (NSW), s 6(1).
Appealed from NSW CCA. [2006] NSWCCA 277; (2006) 164 A Crim R 489.
Gately v The Queen (B15/2007)
Date heard: 18-19 June 2007. Judgment reserved.
Gleeson CJ, Kirby, Hayne, Heydon and Crennan JJ.
CATCHWORDS
Evidence – Admissibility of prior consistent statement – Child complainant’s video pre-recorded evidence-in-chief shown to jury during appellant’s trial – Child complainant’s statement to police also admitted as evidence – Whether child complainant’s prior consistent statement was admissible given that pre-recorded evidence had been admitted already.
Evidence – Use of pre-recorded evidence by jury during deliberations – Trial judge allowed jury to replay pre-recorded evidence during deliberations and did not warn that jury should avoid giving undue weight to the pre-recorded evidence – Whether trial judge should have allowed pre-recorded evidence to be replayed during jury’s deliberations – If so, whether trial judge should have limited number of times that pre-recorded evidence could be replayed – Whether trial judge should have given warning that jury should avoid giving undue weight to the pre-recorded evidence.
Appealed from Qld CA. [2005] QCA 478.
Washer v The State of Western Australia (P6/2007)
Date heard:27 April 2007. Judgment reserved.
Gleeson CJ, Kirby, Hayne, Heydon and Crennan JJ.
CATCHWORDS
Evidence – Appellant convicted of conspiracy to possess a prohibited drug – Prosecution led evidence of transcripts of telephone intercepts and listening devices which contained certain allegedly inculpatory statements – The same evidence had been used in an earlier trial against appellant for conspiracy – Appellant was acquitted – Whether evidence forming the basis of a prosecution case of which an accused is acquitted may be led in a subsequent trial.
Evidence – Trial judge did not allow appellant to admit evidence of acquittal – Whether trial judge should have allowed appellant to admit evidence of acquittal.
Appealed from WA CA. [2006] WASCA 162; (2006) 165 A Crim R 482.
Real Property
Queensland Premier Mines Pty Ltd & Ors v French (M54/2007)
Date heard: 4 September 2007. Judgment reserved.
Gleeson CJ, Gummow, Kirby, Hayne, Heydon, Crennan and Kiefel JJ.
CATCHWORDS
Real property – Torrens title – Transfer of mortgage – Debts or obligations secured by mortgage – Whether, absent any express agreement between the parties, s 62 of the Land Titles Act 1994 (Qld) operates to assign to the transferee of a registered mortgage all debts or obligations which the mortgage collaterally secures.
Appealed from Vic CA. [2006] VSCA 287.
Walker Corporation Pty Limited v Sydney Harbour Foreshore Authority (S307/2007) and (S308/2007)
Date heard: 30 August. Part heard. Listed for further hearing on 6 November 2007.
Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ.
CATCHWORDS
Real property – Compulsory acquisition of land – Determination of market value – Leichhardt Council declined to rezone the appellant's land from industrial to residential, thereby preventing residential development inconsistent with the Council's desired future use of the land as public open space – Whether conduct of Leichhardt Council was part of "the proposal" to carry out the public purpose for which appellant’s land was subsequently compulsorily acquired by respondent – Whether it was appropriate to identify the value that the land would have possessed if it had been rezoned as residential in determining if there had been a decrease in the value of appellant’s land by reason of the proposal – Land Acquisition (Just Terms Compensation) Act 1991 (NSW), s 56(1)(a).
S38/2007 appealed from NSW CA. [2006] NSWCA 386; (2006) 151 LGERA 186.
S44/2007 appealed from NSW CA. [2005] NSWCA 251; (2005) 63 NSWLR 407; (2005) 141 LGERA 243; (2005) 224 ALR 428.
Taxation
Bluebottle UK Limited & Ors v Deputy Commissioner of Taxation & Anor (S302/2007)
Date heard: 29 August 2007. Judgment reserved.
Gleeson CJ, Gummow, Kirby, Hayne and Crennan JJ.
CATCHWORDS
Taxation – Collection of tax due and payable by non-resident from a third party – Whether, in order for s 255(1)(b) of the Income Tax Assessment Act (“the Act”) to operate upon a third party, it is necessary for the Federal Commissioner of Taxation to give notice to the third party pursuant to s 255(1)(a).
Corporations – Assignment of rights to receive a dividend – Board of second respondent declared a dividend that would be paid on 15 December 2006 – Whether s 255 of the Act, or notices issued by the first respondent (Commissioner) on 12 and 14 December, prevailed over the assignment by the second and third appellants of their rights to receive a dividend from the second respondent.
Appealed from NSW CA. [2006] NSWCA 360; (2006) ATC 4803; (2007) ATC 4803 (2006) 64 ATR 621.
---------------------------------------
Section 2: Original Jurisdiction
Δ Indicates cases in the original jurisdiction of the High Court that have become ready for hearing since High Court Bulletin No. 9 of 2007.
Constitutional Law
Betfair Pty Limited & Anor v State of Western Australia (C2/2007) (Writ of summons) (Special case)
Date heard: 26 April 2007
CATCHWORDS
Constitutional law – State legislative power – Section 92 of the Commonwealth Constitution – First plaintiff operates a betting exchange on premises in Tasmania – First plaintiff purportedly granted a Tasmanian gaming licence with a betting exchange endorsement under s 76I of the Gaming Control Act 1993 (Tas) – Purportedly pursuant to the Tasmanian gaming licence, first plaintiff operates a betting exchange by means of a telephone call centre, which is accessible to a person using a telephone anywhere in Australia, and by means of computers connected to the internet, which is accessible to any person using a computer connected to the internet – Section 24(1aa) of the Betting Control Act (WA) provides that “A person who bets through the use of a betting exchange commits an offence” – Whether s 24(1aa) is invalid in whole or in part by reason of s 92 of the Commonwealth Constitution.
Constitutional law – State legislative power – Section 92 of the Commonwealth Constitution – First plaintiff communicates, using telephone and internet communications, names and numbers of horses and greyhounds that will be raced in a horse or greyhound race in Western Australia (“WA race field”) – Section 27D(1), read with s 27C(2)(a)(iii), of the Betting Control Act (WA) provides that it is an offence for a person who operates a betting exchange, whether in the State of Western Australia or elsewhere, to publish a WA race field without authorisation – Whether s 27D(1) is invalid in whole or in part by reason of s 92 of the Commonwealth Constitution.
Constitutional law – State legislative power – Section 118 of the Commonwealth Constitution – Whether s 27D(1) is invalid in whole by reason of s 118 of the Commonwealth Constitution – Whether s 27D(1) is invalid to the extent that it would apply to the conduct of the first plaintiff in publishing or otherwise making available a WA race field in Tasmania or Western Australia or elsewhere.
This matter was brought in the original jurisdiction of the High Court.
Telstra Corporation Limited v Commonwealth of Australia & Ors (S42/2007) (Application for an order to show cause) (Case stated)
Date heard: 4 July 2007
CATCHWORDS
Constitutional law – Section 51(xxxi) of the Constitution – Telecommunications – Appellant required to supply Unconditional Local Loop Service (“ULLS”) to any person or entity under the Trade Practices Act (“the TPA”) – Whether s152AL(3), s152AR or any other provision(s) in Part XIC of the TPA, in their application to the ULLS, are beyond the legislative power of the Commonwealth by reason of s 51(xxxi) of the Constitution – Whether the relevant provision(s) of the TPA can be read down so that it is valid – How the relevant provision(s) of the TPA could be read down so that it is valid.
Constitutional law – Section 51(xxxi) of the Constitution – Telecommunications – Appellant required to supply Line Sharing Service (“LSS”) to any person or entity under the TPA – Whether s152AL(3), s152AR or any other provision(s) in Part XIC of the Trade Practices Act 1974 (Cth) (“the TPA”), in their application to the ULLS, are beyond the legislative competence of the Parliament by reason of s 51(xxxi) of the Constitution – Whether the relevant provision(s) of the TPA can be read down so that it is valid – How the relevant provision(s) of the TPA could be read down so that it is valid.
This matter was brought in the original jurisdiction of the High Court.
---------------------------------------
Section 3: Special Leave Granted
Δ Indicates cases granted special leave since High Court Bulletin No. 9 of 2007.
Aborigines
Griffiths & Anor v Minister for Lands, Planning and Environment & Anor (D3/2004)
Date heard: 21 June 2007. Special leave granted.
CATCHWORDS
Aborigines – Native title – Compulsory acquisition – Whether the Lands Acquisition Act 1978 (NT) permits the compulsory acquisition of native title rights and interests in land for the purpose of extinguishing native title in order to alienate land for the private benefit of another citizen – Lands Acquisition Act 1978 (NT), s 43.
Aborigines – Native title – Compulsory acquisition – Whether s 24MD of the Native Title Act 1993 (Cth) permits the acquisition of native title rights and interests in land for the purpose of vesting the affected land in the Northern Territory freed and discharged of the native title rights and interests – Whether s 46 of the Lands Acquisition Act 1978 (NT) is repugnant to s 238 of the Native Title Act 1993 (Cth).
Appealed from NT CA. [2004] NTCA 5; (2004) 14 NTLR 188; (2004) 133 LGERA 203.
Northern Territory of Australia & Anor v Arnhem Land Aboriginal Land Trust & Ors (D4/2007)
Date heard: 21 June 2007. Special leave granted.
CATCHWORDS
Aborigines – Land rights – Whether the provisions of the Fisheries Act 1988 (NT) apply in tidal areas within the boundaries of “Aboriginal land” within the meaning of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (“Act”).
Aborigines – Land rights – Whether a grant in fee simple of land including such tidal areas under the Act confers rights to exclude from the tidal waters which overlie such land all persons, including persons exercising public rights to fish and to navigate.
Appealed from FCA. [2007] FCAFC 23; (2007) 158 FCR 34.
Administrative Law
Shi v Migration Agents Registration Authority (S230/2007)
Date heard: 5 October 2007. Special leave granted.
CATCHWORDS
Administrative law – Immigration – Review of decision to cancel registration of migration agent by Administrative Appeals Tribunal (“the Tribunal”) – Determination as to whether agent is not a fit and proper person to give immigration assistance – Whether s 43 of the Administrative Appeals Tribunal Act 1975 (Cth) is to be construed as limiting the Tribunal to the facts and circumstances, as they existed at the time of the decision, being reviewed or whether it empowers the Tribunal to consider all the facts and circumstances as they exist at the time of the decision of the Tribunal.
Appealed from FCA. [2007] FCAFC 59; (2007) 158 FCR 525; (2007) 95 ALD 260.
Appeal and New Trial
See Corporations – Aussie Vic Plant Hire Pty Ltd v Esanda Finance Corporation Limited (M74/2007)
See also Courts and Judicial System – Alinta LGA Limited (Formerly the Australian Gas Light Company) & Anor v Mine Subsidence Board (S253/2007)
Constitutional Law
Zentai v Republic of Hungary & Ors (P19/2007)
O’Donoghue v Ireland & Anor (P20/2007)
Date heard: 3 September 2007. Special leave granted.
CATCHWORDS
Constitutional law – Administrative duty imposed upon State magistrates to conduct proceedings to determine whether a person is eligible for surrender for extradition under s 19 of the Extradition Act 1988 (Cth) (“the Act”) – Whether the federal structure of the Constitution implies that Commonwealth Parliament can impose an administrative duty on the holder of a State statutory office without State legislative approval – Whether s 19 imposes an administrative duty on a magistrate as the holder of a State statutory office – Section 6(3) of the Magistrates Court Act 2004 (WA) provides that, with the Governor’s approval, a magistrate (a) may hold concurrently another public or judicial office or appointment made under the law of another place; and (b) may perform other public functions concurrently with those of a magistrate – Whether the imposition of the administrative duty is approved by legislation of the Parliament of Western Australia, in particular, s 6 of the Magistrates Court Act – Extradition Act 1988 (Cth) ss 5, 19, 46.
Appealed from FCA. [2007] FCAFC 48; (2007) 157 FCR 585.
Corporations
Aussie Vic Plant Hire Pty Ltd v Esanda Finance Corporation Limited (M74/2007)
Date heard: 5 October 2007. Special leave granted.
CATCHWORDS
Corporations – Interpretation – Holding that a judge had no power to grant an extension of time within which a company could comply with a statutory demand after the expiry of the original period of extension granted by a Master – Whether such a holding is a correct construction of s 459F(2)(a)(i) of the Corporations Act 2001 (Cth).
Appeal and new trial – Master dismissed application to set aside statutory demand seeking recovery of money but extended time for compliance with statutory demand – Expiration of extended time for compliance with the statutory demand prior to the date of appeal hearing – Whether there is any utility in a Supreme Court judge hearing an appeal on its merits on a de novo basis brought from such a decision in these circumstances in light of Guss v Johnstone (2000) 74 ALJR 884.
Appealed from VS CA. [2007] VSCA 121; 25 ACLC 997; (2007) 63 ACSR 300.
Courts and Judicial System
Alinta LGA Limited (Formerly the Australian Gas Light Company) & Anor v Mine Subsidence Board (S253/2007)
Date heard: 5 October 2007. Special leave granted.
CATCHWORDS
Courts and judicial system – Jurisdiction – Statutory appeal – Where jurisdiction of a Court is invoked in an appeal de novo against a decision by an administrative body in exercise of a statutory power – Whether Court is entitled to decline to exercise jurisdiction by reference to the reasons given by the administrative body to an exclusion of an analysis of the legal effect of the decision made – Mine Subsidence Compensation Act 1961 (NSW), ss 12, 12A, 12B.
Appeal and new trial – Statutory appeal – Mine subsistence compensation claim – Statutory provision conferring right to appeal de novo to a Court against the decision of an administrative body as to the amount of a payment to be made from a statutory fund – Whether such a provision should be read down such that a decision to make a nil payment can be appealed only where the administrative body chose to deal with the merits of the claim – Mine Subsidence Compensation Act 1961 (NSW), s 12B.
Appealed from NSW CA. [2007] NSWCA 100; (2007) 152 LGERA 73.
Dwyer v Calco Timbers Pty Ltd (M125/2006)
Date heard: 3 August 2007. Special leave granted.
CATCHWORDS
Courts and judicial system – Claim for “serious injury” – Appeal from County Court – Court of Appeal deferred to conclusions of primary judge regarding the injury – Whether the Court of Appeal decided, for itself, the appeal on the evidence and other material before the judge, as required by s134 AD of the Accident Compensation Act 1985 (Vic) – Whether s 134AD requires identification of specific error in the primary judge’s decision – Whether it is appropriate for the Court of Appeal to defer to the advantages enjoyed by the trial judge – Whether the County Court, when constituted by certain judges, can be regarded as a specialist tribunal on matters concerning serious injury applications requiring particular deference by the Court of Appeal.
Appealed from VS CA. [2006] VSCA 187.
Criminal Law
Abbas v The Queen (S201/2007)
Date heard: 31 August 2007. Not proceeding.
CATCHWORDS
Criminal law – Appeal and new trial – Charge of maliciously shooting with intent to do grievous bodily harm – Description of gunman as having blood on his face – Absence of clear video record of blood or injury on face of appellant – Court of Criminal Appeal held that verdict not supported having regard to the evidence – New trial ordered – Whether Court of Criminal Appeal should have ordered an acquittal instead – Criminal Appeal Act 1912 (NSW), s 6
Appealed from NSW CCA. [2006] NSWCCA 331.
Adams v The Queen (M49/2007)
Date heard: 5 October 2007. Special leave granted.
CATCHWORDS
Criminal law – Sentencing – Drug offences – Offence under s 223B of the Customs Act 1901 – Statutory construction – Whether it is erroneous for a sentencing judge to take into account the harm caused by the drug constituting the subject of the offence.
Appealed from VS CA. [2007] VSCA 37.
Gassy v The Queen (A2/2006)
Date heard: 9 August 2007. Application for special leave referred to the Full Court to be argued as on appeal.
CATCHWORDS
Criminal law – Miscarriage of justice – Applicant without representation during pre-trial hearing – Whether denial of representation constituted a miscarriage of justice.
Criminal procedure – Directions to jury – Miscarriage of justice – Whether the trial judge’s suggestions to the jury as to how to approach their deliberations were neutral and balanced.
Appealed from SA SC. [2005] SASC 496; (2005) 93 SASR 454.
Criminal Procedure
See Criminal Law – Gassy v The Queen (A2/2006).
Family Law
MW v Director-General of the Department of Community Services (S241/2007)
Date heard: 31 August 2007. Special leave granted.
CATCHWORDS
Family law – Father’s rights of guardianship and custody – Dependent upon parents living in de facto relationship at time of child’s birth under s 17 of the Care of Children Act 2004 (NZ) – Finding that a de facto relationship existed at relevant time – Whether the court should have had regard to s29A of the Interpretation Act 1999 (NZ) in determining whether a de facto relationship existed at the time of the child’s birth, as the Interpretation Act came into force after the child’s birth – Whether the court should have set a “relatively low threshold” test, having had regard to the purpose of the Care of Children Act pursuant to s 29A of the Interpretation Act – Whether the failure to consider intensity and length of the relationship, cohabitation and support, pursuant to s 29A of the Interpretation Act, constituted an error of law.
Appealed from FCA. [No media neutral citation].
Insurance
CGU Insurance Limited v Porthouse (S205/2007)
Date heard: 5 October 2007. Special leave granted.
CATCHWORDS
Insurance – Professional indemnity insurance – Policy did not cover claims arising from “known circumstances” – “Known circumstances” includes what a reasonable person in the insured’s professional position would have thought before policy began, concerning whether any fact, situation or circumstance might result in someone making an allegation in respect of a liability that might be covered by the policy – Whether it is appropriate to consider whether an insured’s actual state of mind was reasonable or unreasonable.
Appealed from NSW CA. [2007] NSWCA 106.
Real Property
Gumland Property Holdings Pty Limited v Duffy Bros Fruit Market (Campbelltown) Pty Limited & Ors (S86/2007)
Date heard: 3 August 2007. Special leave granted.
CATCHWORDS
Real Property – Lease – Deed varying rent payable under lease – Payment of rent declared essential term of both agreements – Failure to pay rent – Whether a lessor, who enters into an agreement varying the rent payable under a lease, consequently loses the right to terminate the lease for breach of an essential term upon the lessee failing to pay the varied rent, even though the obligation to pay rent is an essential term in both the lease and amending agreement.
Real property – Lease – Termination – Whether the assignee of the reversion of land is entitled to terminate a lease and recover loss of bargain damages, notwithstanding the absence of privity contract between the lessor and the lessee – Conveyancing Act 1919 (NSW), s 117 – Real Property Act 1900 (NSW), ss 51, 52.
Appealed from NSW CA. [2007] NSWCA 7; [2007] ANZ ConvR 153.
Restitution
Lumbers & Anor v W Cook Builders Pty Ltd (In Liquidation) (A8/2007)
Date heard: 8 August 2007. Special leave granted.
CATCHWORDS
Restitution – Unjust enrichment – Building contract – Building carried out by third party – Principal paid contractor – Request for further payment by third party – Whether a third party or subcontractor can succeed in a claim for restitution against a principal in circumstances where there is a subsisting and enforceable contract between the principal and its contractor for the performance by the contractor of the work.
Restitution – Incontrovertible benefit – Whether a principal can be held to have received an “incontrovertible benefit” for services rendered by a subcontractor or third party for the purposes of a claim in restitution when the principal did not receive the benefit to which he was contractually entitled.
Restitution – Free acceptance – Whether a doctrine of “free acceptance” exists – Whether the notion of “free acceptance” requires the exercise of an informed choice by a defendant to accept or reject the provision of the alleged benefit by the plaintiff.
Restitution – Respondent unlicensed – Under s 39 of the Builders Licensing Act 1986 (SA) an unlicensed person who performs building work in circumstances where a licence is required shall not be entitled to recover any fee or consideration unless a Tribunal or Court is satisfied that failure to be licensed resulted from inadvertence – Whether s 39 precludes a claim for restitution by a third party or subcontractor.
Appealed from SA SC. [2007] SASC 20; (2007) 96 SASR 406; (2007) 247 LSJS 38.
Taxation
Raftland Pty Ltd as Trustee for the Raftland Trust v Commissioner of Taxation (B11/2007)
Date heard: 21 June 2007. Special leave granted.
CATCHWORDS
Taxation – Unit trust – Whether current year trust income of a unit trust is available for distribution to unitholders, without first recouping prior year losses of the trust.
Taxation – Unit trust – Where the trust instrument imposed on the trustee a duty to pay, apply or set aside the whole of the net income of each accounting period for the benefit of unitholders in proportion to their registered holdings at the end of the accounting period, and the trustee did not do so – Whether unitholders were “presently entitled” to any income or net income of the trust unit or were deemed to be so – Income Tax Assessment Act 1936 (Cth), ss 95A(2) and 97.
Taxation – Unit trust – Whether the unitholders of a unit trust did not have vested and indefeasible interests in any of the income of the unit trust, to which the unitholders had become entitled as at the end of the accounting period, because the trustee had a power or discretion to redeem the units themselves – Income Tax Assessment Act 1936 (Cth), ss 95A(2).
Taxation – Recklessness – Whether a tax shortfall may be caused by recklessness of a taxpayer where the taxpayer had honestly and reasonably relied on legal advice on the question – Income Tax Assessment Act 1936 (Cth), ss 226H.Appealed from FCA. [2007] FCAFC 4; (2007) ATC 4104; (2007) 65 ATR 336.
Torts
Roads & Traffic Authority v Royal & Anor (S202/2007)
Date heard: 5 October 2007. Special leave granted.
CATCHWORDS
Torts – Causation – Negligent design and construction of intersection – Collision between two motor vehicles – Liability of Roads and Traffic Authority (“RTA”) to contribute to judgment entered against the respondent – Trial judge gave short reasons regarding liability of RTA – Whether the Court of Appeal was entitled to interfere with the trial judge’s finding that anything done or not done by the RTA was not causative of the harm suffered by the plaintiff – Whether the Court of Appeal was entitled to find a deficiency of reasons in the judgment of the trial judge, in circumstances where an expression of one’s conclusion did not require lengthy elaboration – Whether the Court of Appeal was entitled to differ from the trial judge by placing weight and emphasis upon, and analysis of, the opinions of experts rather than an assessment of the evidence of eyewitnesses or, alternatively, whether the Court of Appeal erred in doing so.
Appealed from NSW CA. [2007] NSWCA 76; (2007) 47 MVR 401.
Roman v North Sydney Council (S131/2007)
Date heard: 3 August 2007. Special leave granted.
CATCHWORDS
Torts – Civil liability – Appellant injured as a result of falling into a pothole – Section 45 of the Civil Liability Act 2002 (NSW) provides that a roads authority is not liable for harm arising from a failure of the authority to carry out road work, or to consider carrying out road work, unless at the time of the alleged failure the authority had actual knowledge of the particular risk the materialisation of which resulted in the harm – Knowledge of street sweeper – Discussion as to whose knowledge can constitute actual knowledge of the roads authority.
Torts – Civil liability – Whether court erred in applying principles regarding corporate criminal or quasi criminal responsibility in relation to acts for which civil liability is relevant.
Appealed from NSW CA. [2007] NSWCA 27; (2007) 150 LGERA 419.
---------------------------------------
Section 4: Special Leave Dismissed
Perth (Publication of Reasons) 24 October 2007
CIVIL
Rivera v Minister for Justice and Customs [2007] FCAFC 123 (S390/2007)
Special leave dismissed.
CRIMINAL
Vaquere v The Queen [2004] NSWCCA 271 (S528/2005)
Special leave dismissed.
Perth 24 October 2007
CIVIL
Channel Seven Perth Pty Ltd v S (A Company) [2007] WASCA 122 (P31/2007)
Special leave dismissed with costs.
Hannell v Amaca Pty Ltd (Formerly James Hardie & Co Pty Ltd) [2007] WASCA 158 (P36/2007)
Special leave dismissed with costs.
Moss v Amaca Pty Ltd (Formerly James Hardie & Co Pty Ltd) [2007] WASCA 162 (P35/2007)
Special leave dismissed with costs.
Pitt v Baxter [2007] WASCA 104 (P23/2007)
Special leave dismissed.
---------------------------------------
Section 5: Cases Not Proceeding
Pronouncement of Orders by Consent
Lloyd v Ohlstein & Ors (S29/2007)
Date: 23 October 2007.
Appealed from NSW CA. [2006] NSWCA 226; (2006) Aust Torts Reports 81-866.
Special Leave Applications Removed from the List
Magro v Hatt & Ors [2007] WASCA 124 (P30/2007)
--------------------------------------------------------
0
53
0